Security vs. Civil Liberties

02/19/2016 10:27 am ETUpdated
Feb 19, 2017

A Federal Court has ordered Apple to help the FBI unlock the cellphone of San Bernardino terrorist Sayed Farook. Apple CEO Tim Cook opposes that order, citing concerns over the privacy rights of all Americans.

The debate on this issue is the tip of a very large iceberg. It highlights a difficult question every modern state has faced but one that has intensified in age of high tech communication and international terrorism: How does a country balance collective security with individual liberty?

This question goes far beyond an argument over cellphone access. It touches a broad range of issues from surveillance cameras and airport screening through free speech and gun ownership. The most important thing for a free and democratic society such as ours is not, however, what we decide to do in each instance, but that we have an open and honest conversation on these difficult issues before we make decisions.

Freedom entails risk. North Korea has suffered no terrorist attacks, but no one wants to live there. Western Europe and the United States have been struck repeatedly, but they remain the destinations of choice for all those fleeing oppression or seeking opportunity.

Even democratic states must, however, struggle with how to protect their citizens. Collective security requires compromising some individual freedoms. Everyone acknowledges that no person has the right to yell 'fire" in a crowded theater, but some countries take restrictions on speech and expression much further.

Germany and Austria both ban any display of the swastika and have made denying the Holocaust a crime. The U.S. places no restrictions on flying the Confederate battle flag, which many consider an equally odious symbol of racism, and does not prohibit hate speech. Most countries restrict gun ownership and have correspondingly low murder rates. The U.S. allows almost anyone to buy virtually any kind of firearm, and the death toll from gun violence reflects that choice.

The debate over liberty and security has always been difficult, but the communications revolution coupled with the rise of al-Qaeda and ISIS have made it even more complicated. Wire-taps warrants were fairly straightforward in the age of the rotary dial, but they have little value in the era of mobile phones with satellite uplinks.

Small wonder law enforcement has resorted to devices such as Stingray, a scanner that mimics a cellphone tower, vacuuming up all mobile communication within a designated area, or that intelligence agencies want access to Facebook. Criminals and terrorists make extensive use of the Internet and cellphones. The security services are scrambling to catch up with them.

Unfortunately, threatened states sometimes employ new law enforcement/counter-terrorism technologies and measures without adequate public discussion of their benefits and costs and sometimes even without public knowledge.

In the climate of fear that follows a terrorist attack like 9/11 or San Bernardino, frightened citizens will often grant their government extraordinary powers. Following the 1933 Reichstag fire, Adolph Hitler pushed through the Enabling Act, a law granting him dictatorial powers allegedly to fight Communism. Congress enacted the first version of the U.S.A. Patriot Act in a similar atmosphere of heightened anxiety, only to modify it when the hysteria over 9/11 had subsided. "Fear," goes an old Dutch saying, "is a bad counselor."

While many Americans would willingly grant their government extraordinary powers, believing these would never be used against law-abiding citizens like themselves, others see no conflict at all between civil liberties and national security. They would fight terrorism, not with new law enforcement tools, but with blanket restrictions on the minority groups to which the terrorists belong. "Just keep out the Muslims," they argue, "and we'll all be safe."

Such people see no contradiction in demanding unfettered liberties for themselves while denying basic freedoms to entire groups. Their answer to mounting gun violence is not regulation but more guns. Some of them fear their own government more than the threats from which it protects them.

Staking out extreme positions on difficult issues will not produce good solutions to urgent problems. Law enforcement and the intelligence community must be given the tools to counter the terrorist threat, but compromises between security and freedom should only be made after careful consideration and open public discussion.

To take a single example, I am not concerned by the Chicago Police (and other law enforcement agencies) employing Stingray to catch criminals and terrorists, but I am very troubled that the public learned of this technology only after it had been deployed. The Illinois Legislature is considering a bill restricting its use and requiring prompt deletion of data unrelated to an investigation. This measure should have been enacted before the police used the technology. So, however the Apple cell phone controversy gets resolved, the public debate surrounding it is very healthy for the well-being of a free and open society.